Political and cultural commentary from the perspective of radical common sense. Opposition to the AMERICAN BIPOLARCHY and ideological fanaticism in all forms. Don't take our word for anything: figure it out for yourself.

27 February 2013

The Voting Rights Act and temporary constitutionality

The Supreme Court heard oral arguments today in the case of Shelby County v. Holder. The petitioner seeks the discontinuation of the "preclearance" rule enacted in Section 5 of the Voting Rights Act of 1965. The section in question requires certain states, counties, and districts with particularly bad histories of racial discrimination as of 1965 to get preclearance from the federal government before making any changes to local voting laws. While this creates some understandably obnoxious nuisances when the changes are minor, the object is to allow the federal government to consider whether certain changes might have a discriminatory impact on voter turnout. Congress claimed the power to do this under the Fifteenth Amendment, but Section 5 was a temporary measure subject to renewal by Congress itself. It has survived constitutional scrutiny since then, but the Court is now asked, in effect, to declare that the section is no longer constitutional because it is no longer needed. The petitioners further protest that Section 5 has become unjustifiably discriminatory. Under normal circumstances -- the extraordinary circumstances originally justifying the Act being generally conceded -- no states, counties, etc. should be treated differently from others by the federal government based on past conduct, in the petitioners' opinion. At issue now is whether it's the Supreme Court's place to tell Congress to stop renewing Section 5. Excuse a layman's confusion, but the essential question seems to be whether a measure acknowledged as constitutional can become unconstitutional without an amendment to the Constitution, due to changing circumstances. It would seem that, to strike down Section 5, the Court would have to argue that its discriminatory aspect has always been unconstitutional. Attorneys for the Justice Department (i.e. Holder), along with the "liberal" Justices, argue that the Court would trample on Congressional authority by striking Section 5 down merely on the ground that it's no longer necessary. Justice Kagan sarcastically commented that the petitioners sought to give the Court a "big new power." Justice Scalia, however, seems to believe that the governments subject to Section 5 are owed a remedy when Congress seems unwilling or incapable of acknowledging reforms that appear to justify an end to those governments' probationary status. During the oral argument, Scalia described Section 5 as a "racial entitlement" that legislators could not end without grave political risk and many simply would not for any reason. But my impression was that the high court doesn't question motives when deciding whether people or politicians have particular rights of action. Don't some people believe that we can't question individuals' right to keep and bear arms on the suspicion that some people want them for murderous or seditious purposes? By analogy, the "conservative" Justices can't act merely on a perception of unfairness, but only if Section 5 exceeds the mandate claimed under the Fifteenth Amendment.

It might not be a bad thing, however, if the Court struck down Section 5. If you believe in a national standard for election law, you might agree that Section 5 is unfairly discriminatory on the assumption that every state and every jurisdiction in the country should be subject to the same scrutiny. The petitioners and their sympathizers will gladly point out cases of apparently discriminatory voting laws in states unaffected by Section 5. If you believe that any law requiring voters to present photo I.D. will have a discriminatory impact on voter turnout, you might ask why only the areas covered by Section 5 are presumably exempt from such schemes. The demise of Section 5 might spark a national movement for a national election law, but some people will prefer the status quo of Section 5 because they lack confidence in the electorate. But if Section 5 isn't obsolete already, as the petitioners and their Republican friends claim, it ought to be eventually. The challenge is how to ensure that its obsolescence would actually benefit Americans.